Search Decisions

Decision Text

NAVY | DRB | 2007_Navy | ND0700664
Original file (ND0700664.rtf) Auto-classification: Denied
ex-ICFA, USN
ND07-00664    

Current Discharge and Applicant’s Request
Application Received: 20070424   Characterization Received: OTHER THAN HONORABLE CONDITIONS
Narrative Reason: MISCONDUCT DUE TO DRUG ABUSE   Authority: MILPERSMAN 1910-146

Applicant’s Request:     Characterization change to:
                           Narrative Reason change:

Applicant’s Issues:      1. G. I. Bill, medical and dental benefits
                           2. Chemically dependant
                           3. Post service – no longer using illegal drugs


Decision

 By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT .
Date: 20 071205                     Location: Washington D.C         R epresentation :


Discussion

 Issue 1: either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding .

Issue 2 ( ): The Applicant contends that his characterization of service is inequitable because he was “chemically dependant”. C ertain serious offenses (though isolated) warrant separation from the naval service in order to maintain proper order and discipline. The record documents, the Applicant’s in-service use of illegal drugs which is the basis for the discharge. S eparation processing is mandatory for Sailors who abuse illegal drugs. Violations of UCMJ Article 112a (wrongful use of a controlled substance) carries a maximum penalty of a dishonorable disc harge and up to 5 year s of imprisonment if adjudicated by a court martial. The Applicant waived his right to an administrative board and the discharge authority directed the Applicant’s discharge after ensuring com pliance with MILPERSMAN 1910-146 . An under other than honorable conditions characterization of service is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. N othing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgr ade.

Issue 3 ( ): The Applicant contends that he no longer uses illegal drugs. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. Normally, to permit relief a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered. The Applicant state d that he has attended drug rehabilitation and no longer uses illegal drugs . The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced confirmation of his completed rehabilitation, proof of his drug free lifestyle, evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities. The Board determined that the Applicant ’s statement alone did not mitigate the misconduct which resulted in the Applicant’s discharge and characterization of his service.
In reviewing discharges, the Board presume s regularity in the conduct of g overnment al affairs unless there is substantial credible evidence ( to include evidence submitted by the Applicant ) to rebut the presumption . After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, m edical and s ervice r ecord e ntries, d ischarge p rocess and evidence submitted by the Applicant, the Board found that


Summary of Service

Prior Service:
 Inactive: USNR (DEP) 19991211 - 19991222                                   Active:
Period of Service Under Review:
 Date of Enlistment: 19991223      Years Contracted : ; Extension:   Date of Discharge: 20010820
Length of Service: 01 Yrs 07 Mths 28 D ys                           Lost Time: Days UA: 10
Education Level:                  Age at Enlistment: 19              AFQT: 49                   Highest Rank/Rate: ICFA
Evaluation marks (# of occasions):       Performance: NA           Behavior: NA              OTA: NA      
Awards and Decorations (per DD 214): None


Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

 20001214:        NJP – viol UCMJ Art. 92 (fail to obey, 2 specifications) 20001014 and 20001117, by wrongfully consuming alcohol while under age of 21.
         Awarded – FOP ($100); Restr (10 days); Extra duties (10 days)

20010524:        Applicant to unauthorized absence, 0715.

20010601:        Applicant from unauthorized absence, 1225 (7 days).

20010706:        Applicant to unauthorized absence, 0730.

20010710:        Applicant from unauthorized absence, 1300 (3 days).

20010713 :        NJP - v iol UCMJ Art. 86 (unauthorized absence, 2 specifications) from 0715 20010524 until 1225 20010601 and from 0730 20010706 until 1300 20010710; viol UCMJ Art. 112a (wrongful use of a controlled substance, 2 specifications) cocaine May, marijuana June .
         Awarded - FOP ($ 589/month for 2 months); RIR (E-2 ); Restr ( 45 days); Extra duties ( 45 days).

Discharge Process

 Date Notified:                                       2010719
Reason for Discharge:    -
         -
Least Favorable Characterization:       

Date Applicant Responded to Notification:                 20010719
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                      
        
Commanding Officer Recommendation (date):        ( 20010727 )
Separation Authority (date):     Commander, Cruiser-Destroyer Group Five ( 20010730 )
Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       20010820


Types of Documents Submitted by Applicant and Considered By Board

 Related to Military Service:     Service and/or Medical Record:            Other Records:

Related to Post-Service Period:         
         Employment:                        Finances:                          Education:               
         Health/Medical Records:                   Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
        
Additional Statements From Applicant:    From Representative:
Other Documentation (Describe)      


Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 33, effective 16 Jul 2001 until 21 Aug 2002, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.
B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a .

ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity , OUSD (P&R) PI-LP , The Pentagon , Washington, DC 20301-4000 . You should read Enclosure (5) of the Instruction before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

 Service Benefits: The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
Employment/Educational Opportunities : The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.
Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

Issues Concerning Bad-Conduct Discharges (BCD ) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed.

Board Membership: The names and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

 Secretary of the Navy Council of Review Boards
 Attn: Naval Discharge Review Board
 720 Kennon Street SE Rm 309
Washington Navy Yard DC 20374-5023

Similar Decisions

  • NAVY | DRB | 2012_Navy | ND1200556

    Original file (ND1200556.rtf) Auto-classification: Denied

    The NDRB conducted a thorough review of the Applicant’s DD Form 214 and found it to be correct, with the exception of Block 24 (Character of Service), which should read, “UNDER OTHER THAN HONORABLE CONDITIONS.” According to Navy regulations, a DD Form 214 will not be issued to personnel who are discharged for immediate reenlistment on active duty. The criteria used by the VA in determining whether a former servicemember is eligible for benefits are different than that used by the Navy when...

  • NAVY | DRB | 2006_Navy | ND0600122

    Original file (ND0600122.rtf) Auto-classification: Denied

    I deny any and all charges of substance abuse.” Applicant’s Remarks: (Taken from the DD Form 293)“In addition to this review I would like to respectfully request a re-enlistment code change so that I may resume military service.” PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The Applicant was discharged on 20010524 by reason of misconduct due to drug abuse (A and B) with a service characterization of general (under honorable conditions). The summary of service...

  • NAVY | DRB | 2010_Navy | ND1001018

    Original file (ND1001018.rtf) Auto-classification: Denied

    Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, the verbatim transcript record of trial by Special Court-Martial, and the discharge process, the NDRB determined that Therefore, the awarded characterization of service shall BAD CONDUCT DISCHARGE and the narrative reason for separation shall remain . ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance...

  • NAVY | DRB | 2002_Navy | ND02-00208

    Original file (ND02-00208.rtf) Auto-classification: Denied

    I (applicant) (civilian) wish to have my current discharge upgraded from other than honorable to honorable. I ask this of the board because I want to re-enlist in the Navy. ICFA (applicant) has no potential for future Naval service, recommend separation.001220: Commander, Mine Warfare Command directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

  • NAVY | DRB | 2009_Navy | ND0902149

    Original file (ND0902149.rtf) Auto-classification: Denied

    ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2...

  • NAVY | DRB | 2007_Navy | ND0700463

    Original file (ND0700463.rtf) Auto-classification: Denied

    The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge.In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record...

  • NAVY | DRB | 2002_Navy | ND02-00866

    Original file (ND02-00866.rtf) Auto-classification: Denied

    The Applicant’s conduct, and not his time served, forms the primary basis in determining his characterization of service. The Applicant’s service is equitably characterized as being performed under other than honorable conditions due to this drug use. At this time, the Applicant has not provided such documentation for the Board to consider.

  • NAVY | DRB | 2004_Navy | ND04-00761

    Original file (ND04-00761.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests a documentary record discharge review. The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.

  • NAVY | DRB | 2006_Navy | ND0600118

    Original file (ND0600118.rtf) Auto-classification: Denied

    PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The Applicant was discharged on 20041214 by reason of misconduct due to drug abuse (A) with a service characterization of under other than honorable conditions. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. As of this time, the Applicant has not provided any post-service documentation for the Board to consider.

  • NAVY | DRB | 2006_Navy | ND0601133

    Original file (ND0601133.rtf) Auto-classification: Denied

    Elements of Discharge: [INVOLUNTARY] Date Notified:20000620Reason for Discharge due to: Least Favorable Characterization: Date Applicant Responded to Notification: 20000620Rights Elected at Notification:Consult with Counsel Administrative Board Obtain Copies Submit Statement(s) (date)Recommendation of Commanding Officer (date): (20000627)Separation Authority (date):COMMANDER, NAVAL TRAINING CENTER, GREAT LAKES (20000705)Narrative reason directed:Characterization directed: Date Applicant...